Judicial Precedent as a Source of Law
This book offers a historically grounded study of judicial precedent as a source of law across major stages of Western legal development. Beginning with Roman law, it follows the changing role of judicial decisions through Visigothic law, the ius commune, Hispano-Portuguese legal tradition, and the formation of common law, before turning to modern debates on legal sources, legal reasoning, and the authority of courts. Rather than treating precedent as a phenomenon confined to a single legal tradition, the book examines how it assumes different forms and degrees of force in distinct legal orders, including both binding and persuasive authority. The study also situates these developments within broader transformations in legal thought, engaging with questions raised by codification, legal positivism, and the historical school. Its final chapters connect this long historical trajectory to the Brazilian legal experience and to contemporary discussions on the theoretical status of precedent in civil-law systems. Combining legal history with sustained conceptual analysis, the book develops an integrated account of precedent as a recurring and structurally significant feature of adjudication.
José Rogério Cruz e Tucci holds an LL.B. from the University of São Paulo Law School (FDUSP), an LL.M. and an Habilitation (Livre-Docência) from FDUSP, and a Doctor of Law degree from the University of Rome. He is Full Professor at FDUSP, where he has taught Civil Procedural Law since 1988 and, in the graduate programme, the History of Roman, Canon, and Lusitanian Civil Procedure since 1989 and the Litigious Object of Civil Procedure since 1999. He served as Dean of FDUSP from 2014 to 2017 and was previously President of the São Paulo Lawyers’ Association (AASP). A practising attorney and arbitrator, he is also a full member of the International Association of Procedural Law, a member of the Brazilian Academy of Legal Letters, and an ad hoc advisor to FAPESP. He is the author of numerous influential works in procedural law and legal history, including Jurisdição e poder, A motivação da sentença no processo civil, Tempo e processo, Perspectiva histórica do precedente judicial como fonte do direito, Limites subjetivos da eficácia da sentença e da coisa julgada civil, and studies on Piero Calamandrei and Francesco Carnelutti.